JUDGMENT Ajit Singh, J. Appellant Hiralal the sole accused in this case has been convicted u/s 302 of Indian Penal Code and sentenced to imprisonment for life by 5th Additional Judge to the Court of Session Judge, Bhopal vide impugned judgment dated 6-5-1991, for causing the murder of one Prashant Kapoor, the deceased in the case. Appellant has been found guilty of causing a fatal head injury on the deceased by means of a sword at 19.30 hours on 10-1-1989 in the Mangalwara Chawni area of Bhopal town. Briefly stated the facts giving rise to this appeal are as under: Prashant Kapoor (since deceased) a young man of 25 years was initially a resident of Mangalwara, Chawni Area Bhopel town. About 2-3 years before the date of incident, he had shifted his residence to T.T. Nagar of Bhopal but because of his acquaintance he continued visiting his friends particularly Parvez (P.W. 3) at Mangalwara, Chawni area. Appellant and his brother Ramlal are also resident of Mangalwara, Chawni area of Bhopal. It is not out of place to mention that Mangalwara is an extremely busy commercial area of Bhopal and for the purposes of public convenience, only one way traffic is permitted by the Authorities. A day before the date of incident Prashant Kapoor and Ramlal who were friends, for some reason quarreled with each other near the Pan shop of Sanjay S/o of Gangaram (P.W. 4) but due to intervention by Parvez (P.W. 3) and 2-3 other persons both were pacified. On 10-1-1989 Prashant Kapoor had gone to meet Parvez (P.W. 3) who also runs a shop of sanitary fittings near the place of incident and spent sometime with him. At about 7.00 p.m. Parvez (P.W. 3) requested Prashant Kapoor to purchase Pan from the Pan shop and that he would meet him there after closing his shop. Near the Pan shop of Sanjay s/o Gangaram (P.W. 4), appellant suddenly came with a sword and assaulted Prashant Kapoor on his head resulting in profuse bleeding. Appellant gave another blow on Prashant Kapoor and caused an injury on the right scapular region. Thereafter he ran away. Injured Prashant Kapoor was immediately rushed to Hamidia Hospital Bhopal by witnesses Sanajy (P.W. 4), Kailash Narain (P.W. 5) and many others. Parvez (P.W. 3) first went to inform the relatives of Prashant Kapoor about the incident and thereafter to the hospital to see him. Thereafter he ran away. Injured Prashant Kapoor was immediately rushed to Hamidia Hospital Bhopal by witnesses Sanajy (P.W. 4), Kailash Narain (P.W. 5) and many others. Parvez (P.W. 3) first went to inform the relatives of Prashant Kapoor about the incident and thereafter to the hospital to see him. Telephone attendant Ashok Sharma (P.W. 12) gave information on telephone to the police station Mangalwara about the admission of Prashant Kapoor and his P.M.L.C. report No. 127. Dinesh Kumar Mishra (P.W. 14) who was posted as Assistant Sub-Inspector at Police Station Mangalwara immediately rushed to Hamidia Hospital and recorded the Dehati Nalisi Ex.P.14, i.e. statement of narration of incident given by Prashant Kapoor at K.N.B. Ward Number 5 after obtaining the certificate Ex.P.18 of Dr. Arvind Rai (P.W. 11) that patient Prashant Kapoor was in a fit condition to give statement. Dehati Nalisi Ex.P.14 admittedly bears the signature of Prashant Kapoor. On the basis of Dehati Nalisi Ex.P. 14, Dinesh Kumar Mishra (P.W. 14) registered a case at crime No. 13/89 and recorded a F.I.R. Ex.P.15. He also recorded the statement Ex.P.16 of Prashant Kapoor u/s 161 of the Criminal Procedure Code on 10-1-1989. In the hospital injured Prashant Kapoor was examined by Dr. Mahesh Upadhyaya (P.W.10) posted as C.M.O. who prepared his report Ex.P.10. Since he suspected fracture of skull with acute head injury, he recommended for detailed examination by R.S.O. General Surgery. Dr. Arvind Rai (P.W. 11) who was posted as R.S.O. General Surgery in Surgical Ward K.N.B. in Hamidia Hospital, Bhopal prepared his report Ex.P.11 after examining Prashant Kapoor. Efforts were made by Neurosurgeons namely Dr. A Naik and Dr. H.L. Ratre to save his life by performing craniotomy but Prashant Kapoor died after few hours. Dr. Arvind Rai (P.W. 11) has stated in his report Ex.P.11 that on local examination he had found the following injuries on the body of Prashant Kapoor which reads as under: "1. Incised wound over scalp in the mid line and curved 10 cm. x 5 cm. bone deep, defect in bone palpable, fresh bleeding present. Linear friction abrasion over right scapular region, horizontally placed." According to Dr. Arvind Rai (P.W. 11) injury was dangerous to life caused by hard and sharp object and the same was sufficient in the ordinary course of nature to cause death. x 5 cm. bone deep, defect in bone palpable, fresh bleeding present. Linear friction abrasion over right scapular region, horizontally placed." According to Dr. Arvind Rai (P.W. 11) injury was dangerous to life caused by hard and sharp object and the same was sufficient in the ordinary course of nature to cause death. He after examining the weapon of offence further opined in his Weapon Examination Report Ex.P.12 that injury on the body of Prashant Kapoor could be caused by the said weapon. Dr. Badkur (P.W. 9) conducted the post mortem of the deceased Prashant Kapoor and gave opinion in his report Ex.P.9 that he died due to shock and haemorrhage as a result of head injury caused by sharp cutting object and that his death was homicidal in nature. On account of the death of Prashant Kapoor, Dehati Nalisi Ex.P.14 and his statement recorded u/s 161 of the Criminal Procedure Code Ex.P. 16 were admitted in evidence as dying declarations. Rajendra Kumar Malviya (P.W. 15) arrested the appellant on 11-1-1989 and thereafter on the basis of his memorandum statement Ex.P.6 seized the weapon of offence vide Ex.P.7 in the presence of Satish Mahobia (P.W. 7). The appellant in his defence pleaded that he is innocent and has been falsely implicated. In support of his defence he examined one Kailash Sarate (D.W. 1) as defence witness. The Trial Court relying upon the dying declarations Ex.P.14 and Ex.P.16 respectively made by the deceased and also further relying upon the evidence of eye witness Parvez P.W. 3 convicted the appellant u/s 302 Indian Penal Code for committing the murder of deceased Prashant Kapoor. The Trial Court also believed the recovery of weapon of offence i.e. sword from the possession of appellant. Dr. Rajendra Singh, learned Senior Counsel for the appellant challenged the conviction of appellant on the ground that the trial Court ought to have disbelieved the dying declarations Ex.P.14 and Ex.P. 16 as the deceased after the injury sustained by him would not have possibly been able to make such statements. It was further argued that the Trial Court ought to have held that Parvez (P.W. 3) was infact not an eye witness as his name was not mentioned as a witness in any of the two dying declarations i.e. Ex.P.14 and Ex.P.16 made by deceased. It was further argued that the Trial Court ought to have held that Parvez (P.W. 3) was infact not an eye witness as his name was not mentioned as a witness in any of the two dying declarations i.e. Ex.P.14 and Ex.P.16 made by deceased. He further asserted that recovery of weapon of offence from the possession of the appellant was of no consequence as there is no report to suggest that any human blood was found on it. Dr. Rajendra Singh, learned senior counsel in the alternative also argued that even if the prosecution story is accepted appellant cannot be convicted for an offence u/s 302 Indian Penal Code as only an offence u/s 304 (Part-I) at the most is made out against him. After hearing the arguments of Dr. Rajendra Singh, senior counsel for the appellant and Mr. S.K. Gangrade, P.L. for the State, we are of the opinion that the appeal has no merit and deserves to be dismissed. Dying declarations Ex.P.14 and Ex.P.16 were recorded immediately after the incident in the hospital by Dinesh Kumar Mishra (P.W.14). Dr. Arvind Rai (P.W.11) in his evidence has very clearly stated that on receiving the application Ex.P.18 from Sub Inspector, Police Station Mangalwara he examined the patient Prashant Kapoor and found him fit to give his statement at that time and that on Ex.P.18 he gave a report to that effect from A-A and signed the same. Furthermore, Sanjay (P.W.4) who had taken Prashant Kapoor to the hospital has also stated in his evidence that he was not unconscious and was capable of giving statement and he did make a statement about the assault on him by the appellant. Here it is pertinent to mention that Sanjay P.W.4 was examined by the prosecution as an eye witness of the incident but he turned hostile and yet deposed in the Court that deceased was conscious in the hospital and had duly made a statement about the assault on him with a sword by the appellant. Likewise Kailash Narain (P.W.5) was also examined as an eye witness by the prosecution but he too turned hostile and yet he also deposed in the Court that deceased made a statement to the police in the hospital about the assault on his head with a sword by the appellant. Likewise Kailash Narain (P.W.5) was also examined as an eye witness by the prosecution but he too turned hostile and yet he also deposed in the Court that deceased made a statement to the police in the hospital about the assault on his head with a sword by the appellant. Both Sanjay (P.W. 4) and Kailash Narain (P.W. 5) are resident of the same locality where the incident took place, which is also the place of residence of appellant and, therefore, it appears that they have preferred to favour the appellant by denying the fact of actually seeing the incident. But they however, could not deny the recording of dying declarations by the police made by the deceased to the effect that he was assaulted on his head with a sword by the appellant. Thus we are unable to accept the argument that deceased because of the fatal injury on the head could not have possibly made the dying declarations Ex.P.14 and Ex.P.16. Needless to say that in both the dying declarations deceased has very categorically stated about the assault on his head with a sword by the appellant. Dying declaration Ex.P.14 which was recorded as Dehati Nalisi also bears the signature of deceased. The next argument of Dr. Rajendra Singh, senior counsel for the appellant is that the Trial Court has committed an illegality in relying upon the evidence of Parvez (P.W.3) as an eye witness. According to the learned senior counsel, if Parvez (P.W.3) was infact present at the place of incident the deceased would have mentioned his name as an eye witness in his aforesaid dying declarations like he had mentioned the name of Kailash Narain (P.W. 5). We are afraid even this argument cannot be accepted. In both the dying declarations Ex.P.14 and Ex.P.16 deceased had categorically stated that he had gone to visit Parvez (P.W.3) at Chawni where the appellant assaulted on his head with a sword on account of previous day quarrel with his elder brother Ramlal. Kailash Narain (P.W.5) as already stated above although examined as an eye witness and had turned hostile in favour of appellant has clearly stated in his evidence in the Court that Parvez (P.W.3) was very much present at the place of incident. Kailash Narain (P.W.5) as already stated above although examined as an eye witness and had turned hostile in favour of appellant has clearly stated in his evidence in the Court that Parvez (P.W.3) was very much present at the place of incident. Besides this since the deceased had stated in the dying declarations that he had visited Parvez (P.W.3) at Chawni he did not think it necessary to specifically mention his name as an eye witness. Kailash Narain (P.W.5) has been mentioned as an eye witness by the deceased in both his dying declarations. Kailash Narain (P.W.5) despite his denying in the Court of having seen the assault on the deceased by the appellant has categorically admitted the presence of Parvez (P.W. 3) the place of incident. Thus we are of the firm conclusion that the Trial Court did not commit any illegality in accepting the evidence of Parvez (P.W.3) as an eye witness. Parvez (P.W. 3) has stood firm in his evidence in the Court as an eye witness. He has fully corroborated the statement made by the deceased in his dying declarations Ex.P.5 and Ex.P.7. According to Parvez (P.W.3) on account of quarrel between the deceased and Ramlal brother of the appellant on the previous day of incident, appellant assaulted him with a sword which resulted into his death. His evidence is natural and also stand fully corroborated by the medical evidence. Even in his cross examination nothing has come on record to disbelieve his evidence about the murderous assault on the head of deceased with a sword by the appellant. Dr. Rajendra Singh, learned senior counsel for the appellant has further argued that recovery of sword as weapon of offence from the possession of appellant at his behest is of no consequence as there is nothing on record to suggest that the said sword had any human blood stains on it. Satish (P.W. 7) has deposed in the Court that appellant had made a memorandum statement Ex.P.16 to the police before him regarding the use of sword as weapon of offence and thereafter he led to the recovery of the same vide Ex.P.7 Dr. P.N. Upadhayay (P.W. 11) too has supported in his opinion report Ex.P.12 that from the weapon seized injury found on the deceased was possible. P.N. Upadhayay (P.W. 11) too has supported in his opinion report Ex.P.12 that from the weapon seized injury found on the deceased was possible. Under the facts and circumstances of the present case merely in the absence of any report about the presence of human blood on the weapon of offence, the prosecution story against the appellant cannot be disbelieved. The next and rather the main submission of Dr. Rajendra Singh, learned senior counsel, is that the offence committed by the appellant would only amount to culpable homicide inasmuch as he inflicted only one injury. He further submitted that possibility of the death of Prashant Kapoor on account of medical negligence of Neurosurgeons while performing craniotomy cannot also be ruled out. In support of his submissions, Dr. Singh invited our attention to the judgment of the Supreme Court in Hardev Singh and Another Vs. The State of Punjab, . Shri Shailendra Gangrade, learned Panel Lawyer appearing for the State, argued that none of the requirements of exception 4 to section 300 of Indian Penal Code are present and the circumstances clearly suggest that the appellant had intention to kill the deceased, therefore, he was rightly convicted u/s 302 of Indian Penal Code. He relied upon the judgment of the Supreme Court in Mahesh Balmiki @ Manna Vs. State of Madhya Pradesh, . We have examined the facts in the present case. On account of quarrel between the deceased and the appellant's brother Ramlal, on the previous day of the date of incident, the appellant with pre-meditation suddenly came with an extremely deadly weapon i.e. sword and assaulted the deceased with a great force on his head resulting in profuse bleeding. The appellant gave another blow and caused injury on the right scapular region. As already stated above, the appellant daringly assaulted the deceased publicly in an extremely crowded area of Bhopal. Deceased was a young man and totally unarmed at the time of assault. Head is the most vital and vulnerable part of the body. On medical examination Dr. Arvind Rai (P.W.11), in his report Ex.P.11, found two injuries on the person of Prashant Kapoor which supported his statement made in the hospital to the police. Deceased was a young man and totally unarmed at the time of assault. Head is the most vital and vulnerable part of the body. On medical examination Dr. Arvind Rai (P.W.11), in his report Ex.P.11, found two injuries on the person of Prashant Kapoor which supported his statement made in the hospital to the police. According to him, injury on the head of deceased Prashant Kapoor was dangerous to life, caused by hard and sharp object and the same was sufficient in the ordinary course of nature to cause death. He also opined in his Weapon Examination Report Ex.P.12, that injury on the body of Prashant Kapoor could be caused by the said weapon. Dr. Badkur (P.W. 9) who conducted the postmortem on the body of the deceased found the following:-- "Antemortem injuries:-- There was a surgically stitched wound 18 cm. long with 12 stitches situated on cranial vaull starting from hair line 5.5 cm. above the medial end of the left eye-brow and 1 cm. left to the mid line, directed upward and left in the posterior 6 cm. length and the terminal posterior end in 1.5 cm. length was directed posterilaterally. Margins were shapely cut with beveling of left margin and the left margin was hanging over the wound. Underneath the margins of the wound the scalp was separated from the bone in 3 cm. wide area on each side and the scalp was ecchymosed in 20 x 12 cm. longitudinal area around the wound in front and parietal region. The wound was packed with gel foam internally, the frontal and parietal bone in the region of segital suture and on left side were sharply cut in 12 cm. length in the middle portion of external wound with bavelling in the right margin and the left margin of the wound was hanging over. The gapping in the sharp cut area measure 3 to 5 cm. in width and was spinal shaped. Underneath the boney cut extra dural haemotoma was visible. From the anterior sharp cut and in the bone a linier radiating fracture 7 cm. long extended downwards and posteriorly upto the temporal line in the frontal bone, with concavity downward and posteriorly. From the posterior sharpcut end in the left parietal bone a lenier fracture line extended downwards and anterolaterally measuring 9 cm. length with concavity facing anteriorly. From the anterior sharp cut and in the bone a linier radiating fracture 7 cm. long extended downwards and posteriorly upto the temporal line in the frontal bone, with concavity downward and posteriorly. From the posterior sharpcut end in the left parietal bone a lenier fracture line extended downwards and anterolaterally measuring 9 cm. length with concavity facing anteriorly. The chipping of the outer table present at the curvature anteriorly in 3 x 1 cm. irregular area. An irregular piece of bone 6 x 3.5 cm. was missing anterior to the comal suture and was having nibbled out margines. The extra dural haemotoma 10 x 8 cm. in size longitunally and 1 cm. in thickness more on the left frontal lobe with cupping effect and sub-dural haemotoma in 7 cm. diameter area on left frontal and parietal lobe. The dura matter was cut in 7 x 1 cm. area and the sagital sinus was cut in 1.5 x 2 cm. area with a sharp cut of 1 x 2 cm. size on the upper medial surface of left frontal and parietal lobe, just under the coronal suture. The maximum depth wound was in the central part which measured 1.5 cm. and gradually the wound was shallow towards both the ends. Brain matter was ecchymosed at the cut margines and C.S.F. was haemorrhaging. Brain was oedamatous." He, in his post-mortem report Ex.P.9 opined that the deceased Prashant Kapoor died due to shock and haemorrhage as a result of head injury caused by sharp cutting object and that his death was homicidal in nature. The impact of the blow on the head of deceased Prashant Kapoor has been disastrous. It cannot be said that the fatal injury was inflicted without premeditation. It also cannot be said that the appellant has not taken undue advantage or not acted in cruel or unusual manner. All the above circumstances would show that appellant intentionally inflicted the head injury with a deadly weapon to cause the murder of deceased Prashant Kapoor. Adverting to the contention of a single blow, in Mahesh Balmiki (supra) the Supreme Court has specifically held that there is no principle that in all cases of single blow section 302 of Indian Penal Code is not attracted. Adverting to the contention of a single blow, in Mahesh Balmiki (supra) the Supreme Court has specifically held that there is no principle that in all cases of single blow section 302 of Indian Penal Code is not attracted. Single blow may, in some cases entail conviction u/s 302 of Indian Penal Code, in some cases, u/s 304 of Indian Penal Code and in some other cases u/s 326 of Indian Penal Code. The question with regard to nature of offence has to be determined on the facts and in the circumstances each case. The nature of the injury, whether it is on the vital or on the non-vital part of the body, the weapon used, the circumstances in which the injury is caused and the manner in which the injury is inflicted are all relevant factors which may go to determine the required intention or knowledge of the offender and the offence committed by him. In the instant case, the deceased was assaulted with a sword on his head by the appellant with premeditation in a public place. The deceased was unarmed at the time of assault. These facts clearly establish that the appellant had intention to kill the deceased. In any event, he can safely attributed knowledge that the sword blow given by him is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death. The case of Hardeo Singh vs. State of Punjab relied upon by learned Dr. Rajendra Singh, Senior Counsel for the appellant, has no application in the present case. In the said case, Hardeo Singh had first assaulted Kewal Singh with a "Takwa' blow on his head as a result of which he fell down. Then his mother, Tej Kaur, who was an old lady of about 55 years of age reached the spot and lay herself on Kewal Singh in order to save him. Appellant, Hardeo Singh, inflicted a Kripan blow on her head. She fell down and became unconscious. The Supreme Court after examining the evidence of prosecution of the said case held that it cannot be said that Hardeo Singh aimed his Kripan blow at the head of Tej Kaur. It may be held that Hardeo Singh wanted to give a Kripan blow to Tej Kaur as she lay herself upon Kewal Singh but not necessarily on her head. It may be held that Hardeo Singh wanted to give a Kripan blow to Tej Kaur as she lay herself upon Kewal Singh but not necessarily on her head. Falling of the Kripan accidently on the head of Tej Kaur cannot be ruled out. The Hon'ble Supreme Court, thus, altered the conviction of appellant, Hardeo Singh, u/s 304 Part I from section 302 of Indian Penal Code. In another case, Jai Prakash Vs. State (Delhi Administration), (Delhi Administration) Supreme Court affirmed the conviction of appellant Jaiprakash u/s 302 of Indian Penal Code. He was alleged to have inflicted only a single incised stab wound injury with a Kripan on the left side of the chest of deceased which proved fatal. The submission that possibility of the death of Prashant Kapoor on account of medical negligence of neuro surgeons while performing craniotomy is without any basis. On the contrary, it has come in the evidence of Dr. Arvind Rai (P.W. 11) that craniotomy was done by neurosurgeons - Dr. A.K. Rai and Dr. H.L. Ratre with the sole object to save the life of deceased Prashant Kapoor on their advise and that by craniotomy the life of the patient is not endangered. For the above reasons, we are of the view that the appellant had rightly been convicted u/s 302 of Indian Penal Code by the Trial Court. We find no merit in this appeal and is accordingly dismissed. Appeal dismissed. Final Result : Dismissed